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Exhibit 4.16
RED XXXX BREWING COMPANY
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT is made this 5th day of February 2001, by and
between CDB FINANCE CORPORATION, a Pennsylvania corporation ("CDB"), and RED
XXXX BREWING COMPANY, a Pennsylvania corporation (the "Company").
BACKGROUND
As more fully set forth herein, the Company is issuing to CDB 7,000 shares
of Common Stock of the Company (the "Stock").
AGREEMENT
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
1. PURCHASE. The Company hereby sells the Stock to CDB, and CDB hereby
purchases the Stock from the Company. The Stock is being issued to CDB by the
Company as an inducement for a loan in the principal amount of $57,000 being
provided by CDB to the Company. A certificate representing the Stock shall be
delivered to CDB within thirty days following the date hereof.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to CDB that the issuance of the Stock has been duly authorized and
the Stock when issued will be validly issued, fully paid and non-assessable.
3. REPRESENTATIONS AND WARRANTIES OF CDB. CDB hereby makes the following
representations and warranties to the Company:
A. CDB understands that the Stock is being offered and sold under an
exemption from registration under the Securities Act of 1933, as amended (the
"Act"), and offering exemptions contained in the securities laws of other
jurisdictions; that CDB is purchasing the Stock without being furnished any
offering literature or prospectus of any sort relating to the Company; that all
documents, records and books pertaining to this investment and the Company have
been made available by the Company to CDB and CDB's representatives.
B. CDB understands that the Stock has not, and except as provided in
the Registration Rights Agreement between the parties, will not be registered
under the Act or any state securities laws, and that in order to sell or
transfer such Stock, such Stock must either be registered under such laws or an
appropriate exemption from registration must be available.
C. CDB is a bona fide resident and domiciliary of the State of
Pennsylvania and has no present intention of becoming a resident or
domiciliary of any other jurisdiction.
D. CDB is an accredited investor as defined in Rule 501 under
the Act. CDB is able to fend for itself in this transaction.
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E. CDB confirms that CDB understands and has fully considered for
purposes of this investment that there are substantial restrictions on the
transferability of the Stock and there is currently no established public market
for the Stock and no liquidity is present in connection with the Stock.
F. CDB has such knowledge and experience in financial and business
matters that CDB is capable of evaluating the merits and risks of an investment
in the Stock and of making an informed investment decision.
G. CDB confirms that in making CDB's decision to purchase the Stock
hereby subscribed for CDB has relied solely upon CDB's own independent
investigation of the Company and not on any representations, warranties, or
statements made by or on behalf of the Company (other than those made herein),
and that CDB has been given the opportunity to ask questions of and to receive
answers from the Company concerning the Company, its financial condition and
business, and to obtain any additional information which the Company possesses
or can acquire without unreasonable effort or expense, and CDB believes it has
received all the information it considers necessary or appropriate for deciding
whether to purchase the Stock.
H. The Stock hereby subscribed for is being acquired by CDB in good
faith solely for CDB's own account for investment purposes only and is not being
purchased with a view to or for the resale, distribution, subdivision or
fractionalization thereof; CDB has no contract, understanding, undertaking,
agreement or arrangement, formal or informal, with any person to sell, transfer
or pledge to any person the Stock for which CDB hereby subscribes for or any
part thereof; CDB understands that the legal consequences of the foregoing
representations and warranties are that CDB must bear the economic risk of an
investment in the Stock for an indefinite period of time because the Stock has
not been registered under the Act or applicable state securities laws and
therefore cannot be sold unless the Stock is subsequently registered under the
Act or applicable state securities laws (which the Company has agreed to do
under the Registration Rights Agreement between the parties) or an exemption
from such registration is available.
I. CDB consents to the placement of a legend on the certificate
representing the Stock being purchased by CDB, which legend will be in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
OTHER JURISDICTION. THE SALE OR OTHER DISPOSITION OF THESE
SECURITIES IS PROHIBITED UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL SATISFACTORY TO IT AND ITS COUNSEL THAT SUCH SALE OR OTHER
DISPOSITION CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES
ACT OF 1933 AND OTHER APPLICABLE STATUTES. BY ACQUIRING THE
SECURITIES REPRESENTED BY THIS CERTIFICATE, THE HOLDER OF THIS
CERTIFICATE REPRESENTS THAT THE HOLDER HAS ACQUIRED THESE SECURITIES
FOR INVESTMENT AND THAT THE HOLDER WILL NOT SELL OR OTHERWISE
DISPOSE OF THESE
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SECURITIES WITHOUT REGISTRATION OR OTHER COMPLIANCE WITH THE
AFORESAID ACTS AND THE RULES AND REGULATIONS THEREUNDER."
J. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby has been duly authorized by
CDB.
4. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS AND
REMEDIES. Except as specifically provided otherwise herein, all
representations, warranties, covenants, agreements and remedies of the
parties hereto, shall survive the date hereof.
5. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
and agreement between the parties hereto with respect to the transactions
contemplated herein, supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties, and there have been no warranties, representations or promises, written
or oral, made by any of the parties hereto except as herein expressly set forth
herein.
6. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, as well as their respective heirs,
personal representatives, successors and assigns but no party may assign its
obligations hereunder.
7. PENNSYLVANIA LAW CONTROLS. This Agreement shall be construed in
accordance with and shall be governed by the laws of the Commonwealth of
Pennsylvania without regard to its conflicts of law rules.
IN WITNESS WHEREOF, each of the undersigned, intending to be legally bound
hereby, has executed this Subscription Agreement as of the date set forth above.
CDB FINANCE CORPORATION
By: Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
RED XXXX BREWING COMPANY
By: Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President
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